Before the John Roberts confirmation hearings began, progressive opponents of Bush’s pick to be chief justice were fretting that the media attention given to the Katrina mess would prevent Democrats from using the hearings to make a public case against Roberts. Now I’m thinking that maybe–in a way–it was good that the public is not seeing much of the Roberts hearings. The Democrats have not succeeded in depicting him as a danger to Americans. As I previously wrote, most of the Democratic members of the judiciary committee spent the first day of the hearings–the warm-up day–fixating on process questions, such as whether they had the right to ask Roberts questions about his views. (See the post below.) Day 2 was the supposed to be the main attraction: question time for Roberts. And it came as no surprise that a fellow who has argued dozens of cases before the Supreme Court was able to deftly handle the queries from the Dems. That’s not to say that he always was right in his answers or bested his interrogator on debate points. But the Democrats landed few blows. They can huff that he did not answer questions about Roe while he did about Brown v. Board of Education. But Roberts–as was his mission–provided them little ammunition. He displayed a gentle and thoughtful manner. And appearances do matter. (Just ask Robert Bork if he wishes he had shaved off his less-than-stylish beard.) Roberts sounded reasonable, as he ducked critical matters or parried with Democrats.
Right off, Republican Senator Arlen Specter, the chairman of the committee, led Roberts through the critical issue of the hearings. He asked Roberts about Roe and the principle of stare decisis. Roberts quoted James Hamilton in the Federalist Papers that judges need to be “bound down by rules and precedents.” He said all the right things about the importance of precedent and the value of stare decisis. He noted that precedent can only be overturned in limited cases. But he would not talk specifically about Roe, noting he feels “the need to stay away from the discussion of specific cases.” Specter several times described Roe as well-established precedent, calling it a “super-duper” precedent. Roberts thoughtfully discussed the abstract notion of precedent. But he said nothing about how stare decisis might be applied to future cases involving abortion rights. This duet produced rhetoric useful to each participant. Specter trumpeted his support for abortion rights and argued that Roe should not be overturned. Roberts praised precedent as a guiding but not inviolable principle without making any commitments to protect Roe.
Then various Democrats took their turns. Senator Pat Leahy tussled with Roberts about a decades-old memo in which he seemed to suggest presidents–not Congress–can decide whether to wage war. Roberts claimed–politely–that Leahy was “vastly over-reading” the memo and added that he merely had been representing the position of his boss at the time, the president. Senator Ted Kennedy challenged Roberts on positions he had taken–or represented–on civil rights law when he worked for the Reagan administration. Roberts revived arguments the Reaganites had used to oppose certain remedies for discrimination. This produced much spirited much back and forth over legal matters years old. That’s not to say this stuff is not important. But I doubt the debate over the Grove City decision would resonate with a general audience. Under the questioning of Senator Joseph Biden and other Democrats, Roberts did say that the Constitution contained a right to privacy. But he would not say whether such a right covered abortion. Biden cornered Roberts once or twice–but not in any fashion that would matter much beyond the committee room.